The Cigarette, The Batman, and The Youth: a History of Tobacco Regulations and Comic Books – Part IV: Smoking Depictions and the First Amendment

There have not been any legal actions or statutes that regulate smoking depictions in comic books, but there has been litigation over statutes that regulate depictions of violence, sex and crime in comic books. In this post, we will explore Winters v. New York, Brown v. Entertainment Merchant Association, and Miller v. California to provide a framework to analyze whether smoking depictions could be statutorily regulated and withstand the heightened scrutiny applied to First Amendment cases.

Statutes that Prohibited Distribution of Media with Violent Depictions to Children

In 1948, one of the earliest U.S. Supreme Court decisions affecting comic book publishers came from Winters v. New York. In Winters, the Supreme Court struck down a New York statute prohibiting distribution of magazines that amassed stories of crimes, bloodshed, and lust that could influence criminal behavior.[1] The Court reasoned that the statute was vague where it was difficult to determine what depictions of violence or sex were prohibited. [2] The Court also determined that the regulated content did not fall outside of First Amendment protection because it was not obscene.[3]

In 2011, the Winters rationale was utilized in Brown v. Entertainment Merchants Association. In Brown, a California statute prohibited distribution of video games to minors that depicted, “killing, maiming, dismembering, or sexually assaulting an image of a human being,” where the video games failed the Miller obscenity test.[4] The Miller test is used to determine whether depictions of sexual content are obscene for First Amendment purposes,

That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.[5]

The Court looked into whether, in light of First Amendment protections, the New York legislature could shoehorn a new category of unprotected speech—violent depictions—into the obscenity definition test as conceived in Miller. The Court determined that obscenity prohibitions only apply to depictions of sexual conduct, not merely what the legislature “finds shocking.”[6] Although the Court conceded that a state does have the power to protect children from “legitimate harm,” a state does not have “free-floating power to restrict the ideas to which children may be exposed.”[7]

The majority opinion also considered whether there was a long-standing American tradition of prohibiting children’s access to depictions of violence, and it determined that there was no such tradition.[8] It noted that attempts to censor violence in comic books due to rising juvenile delinquency in the 1940s and 1950s ultimately failed, which, among similar prohibition attempts in movies, music and television, did not establish such a tradition.[9] The Court asserted that a legislature could not make a new category of unprotected speech if the speech was not traditionally prohibited.[10] Justica Scalia, writing the majority opinion in Brown, reaffirmed an assertion in Winters that even a valueless expression is entitled as much free speech as “the best of literature.”[11] As a result, violent depictions in video games receive full First Amendment protections.

Where the government wants to regulate the content of protected speech the regulation is deemed invalid unless it passes strict scrutiny.[12] The government must show that it has a compelling interest to regulate the speech, and the government must show that regulation is narrowly tailored to the interest.[13] Moreover, the state must show there is an “actual problem” that needs to be addressed, and that regulating otherwise protected speech is a necessary solution to the problem.[14] The Court acknowledged that regulating the content of speech will rarely, if ever, be permissible.[15]

First, the Court determined that there was not a compelling interest where the State failed to show that there was an actual problem. The State admitted that it could not show causal relationship between videogame violence and harmful effects on children.[16] Moreover, the Court determined that studies used to support California’s prohibition did not contain evidence of causation, only correlation, of harmful effects on children, and many of the studies suffered from flawed methodology.[17]

Second, the Court found that the statute was not narrowly tailored. The State’s alleged interest was to protect children from violent depictions, but the statute failed to address many sources of violent depictions accessible to children. As a result, the statue was under-inclusive where “booksellers, cartoonists and movie producers” where not prohibited from selling violent media to children.[18] The statute was also under-inclusive because it allowed adults other than parents to purchase violent video games for children without any type of verification or consent from the child’s parents.[19] This undermined the State’s justification that the statute helped parents control access to violent video games.[20] Additionally, the videogame industry has a rating system that helps control the distribution of violent video to children and informs parents about the content of video games.[21] The self-regulated videogame industry provided parents with effective ways to control a child’s access to violent videogame content, and any effort to supplement the existing restrictions with a statute was superfluous.[22]

Finally, the statute was found over-inclusive because not all parents care that their children play violent video games.[23] The statute more-or-less supported, “what the State thinks parents ought to want,” and, ironically, the statue was too paternalistic.[24] For the aforementioned reasons, the Court struck down the California statute because it failed First Amendment strict scrutiny analysis.

Statutorily Regulating Smoking Depictions In Comic Books

Winters and Brown, of course, were concerned with the effects of violent depictions in media, not with smoking depictions. These cases, however, offer a useful framework for a First Amendment challenge to legislation that bans smoking depictions in comic books. Under these analyses, it appears difficult for legislatures to regulate smoking depictions in comic books due to First Amendment protections. Nevertheless, understanding the arguments from Brown could provide valuable insight into crafting a Constitutionally sound smoking depiction regulation.

The first thing to consider is whether smoking depictions would be exempt from standard First Amendment protections. It must be considered whether there has been a tradition of regulating children’s exposure to smoking depictions, and whether smoking depictions would qualify as obscenity under First Amendment doctrine. Although there has been a strong tradition of prohibiting cigarette advertisements to children, there has not been a tradition of prohibiting smoking depictions. Even the movie industry only began self-regulating smoking depictions in the mid-2000s, and not all smoking depictions have been eliminated from children’s movies.[25] Additionally, smoking depictions appear in other media, including literature and theatre, which have not been traditionally regulated for children. Under Brown, this precludes a legislature from creating a new category of unprotected speech for smoking depictions in comic books. Moreover, smoking depictions would not qualify as obscenity under the Miller test where smoking depictions are not sexual conduct, and depictions of smoking would not render an entire comic book obscene. As stated in Brown, the obscenity definition is limited to depictions of sexual conduct, and cases applying the Miller test to comic books support this interpretation.[26] These considerations make it unlikely that smoking depictions would be exempt from First Amendment protections.

Where smoking depictions receive full First Amendment protections, a statute regulating smoking depictions in comic books would have to survive strict scrutiny as posited in Brown.[27] First, the State would have to demonstrate the statute is justified by a compelling State interest to protect children from the dangers of smoking. It would take no stretch of the imagination to understand that the State has a compelling interest to protect children from the dangers of smoking. The dangers of youth smoking and the knowledge that children are receptive to smoking depictions establish a compelling interest to protect children from smoking. The State could also identify youth smoking as a problem where most smokers begin smoking before 18 years of age.[28] Additionally, there is a compelling State interest where current comic book rating systems do not address smoking depictions, and parents may be unaware of a comic book’s smoking-related content.[29]

Second, that State would have to demonstrate the statute is narrowly tailored to the compelling interest to curb youth smoking. The statute has to be narrowly tailored where it is not over-inclusive or under-inclusive. A statute would be under-inclusive if it targets only comic book smoking depictions but not smoking depictions in other media. This may be the largest hurdle to get over in the narrow-tailoring prong since most, if not all, media sources accessible to children would have to be included to demonstrate that the State was not merely targeting comic books for disfavored treatment. If a statute would only target comic books, then there would have to be a compelling justification. One justification could be that smoking depictions are not taken into consideration for comic book rating systems, unlike other media such as film. Such arguments would distinguish comic books from other media, and potentially avoid issues of under-inclusion.

Issues of over-inclusion could also be a problem for a statute regulating smoking depictions. For example, it would be over-inclusive if the statute’s language forbade smoking depictions in anti-smoking comic books or comic books with anti-smoking messages. A prohibition on smoking depictions in anti-smoking comics would undermine the State’s interest in preventing youth from smoking. A statute would also be over-inclusive where it prohibits youth from buying comics with smoking depictions where some parents would not care if their children were exposed to smoking depictions. The statute would have to require that parents consent to their child purchasing a comic book with smoking depictions to promote the State’s interest in helping parents raise their child. A statute would still be over-inclusive where some parents do not care if their child sees smoking depictions in comic books, but it may be argued that most parents would rather not have their children influenced to smoke. This is particularly relevant where, unlike Brown, it has been scientifically proven that smoking depictions influence youth to smoke.[30]

Third, the State must identify smoking depictions as a problem. Currently, the causal relationship between smoking depictions in comic books and youth smoking is understudied.[31] It can, however, be argued by analogy that smoking depictions in comic books influence youth to smoke in the same way that smoking depictions in movies influence youth to smoke.[32] This a substantial problem where youth smokers often become adult smokers who suffer debilitating health issues.[33]

Finally, the State must show that prohibiting the sale of comic books with smoking depictions to children is necessary to provide a solution to the problem of youth smoking. This may require more research into comic book readership, smoking depiction exposure rates, and the influence of smoking depictions on comic book readers.

The constitutionality of regulating sales of comic books with smoking depictions is questionable. This is especially true where smoking depictions would likely receive full First Amendment protections. Although smoking depictions could be seen as valueless, they would, under Brown, be entitled to as much free speech as free as James Joyce’s Ulysses or Herman Melville’s Moby Dick. Perhaps the largest hurdle to overcome is getting over the narrowly tailored prong of the strict scrutiny analysis. A comic book smoking depiction statute, however, would have two key distinctions from the violence depiction statute in Brown. First, there is a causal relationship between a child viewing smoking depictions and the likelihood a child will start smoking. Second, and interrelated, there is no doubt that youth smoking causes harm to children. This harm consists of health issues that no less include death. The State, in its capacity as parens patriae, may more easily regulate the sale of comic books with smoking depictions to children where there is a causal relationship between smoking depictions and the harm to children.